9 November 2008

Election 08 - the constitutional transition

In the light of last night's results, the transition process - from a constitutional perspective - will be as follows.
First, even though the electoral process has delivered a clear verdict, those parties that will form the government will need to complete their (political) coalition negotiations.
Secondly, the constitutional role of the Governor-General regarding the appointment of the Prime Minister remains the same: to ascertain where the support of the House lies (see LAWS179: "NineToNoon: The election and government formation"). While it is clear that John Key will lead the next government, the precise nature of the coalition or government arrangements - and parties in any coalition or support arrangements - is yet to be settled. The Governor-General needs to be satisfied that that grouping will be able to survive confidence and supply votes in Parliament. As a guide, the Governor-General has traditionally looked for signed coalition or confidence-and-supply agreements, or similar joint public statements confirming arrangements have been settled to provide that support.
Again, it's important to note that this process and its timing will be driven by the political parties. Their obligation is to publicly declare the position once it is reached; once that is done, the Governor-General will execute the constitutional process of appointing and swearing in the Prime Minister and new government.
When that formal constitutional transition will take place is not known. From a constitutional perspective, it need not await the final results following the counting of special votes (22 November 2008). Given the relatively clear electoral verdict for the potential coalition government, the Governor-General might be able to be satisfied that this grouping can command the confidence of the House regardless of any possible changes from special votes. (In previous rounds of government formation under MMP, coalition negotiations weren't finalised - and the governments weren't appointed - until after the final confirmation of the various results, in some cases, the outcome of the special votes being material to the garnering of a coalition.) However, the parties or the Governor-General may take a prudent course and the constitutional transfer of power might not be sought or applied until after the official results are known.
Thirdly, in the meantime, Helen Clark remains Prime Minister with lawful executive authority, along with her ministers. But their power is entirely circumscribed by the caretaker convention until the new government is sworn in.
Before the election, we expected that one particular version of caretaker convention would apply during the period of coalition negotiations, that is, the relatively complex set of provisions in para 6.20 of the Cabinet Manual regulating decision-making where the identity of the incoming government is unclear. However, in this case where there is a clear verdict, the alternative version of the caretaker convention in para 6.24 of the Cabinet Manual applies:

Principles of the caretaker convention
Two arms of the convention
6.19 There are two arms to the caretaker convention:
a. where it is not clear who will form the next government (see paragraphs 6.20 - 6.23);
b. where it is clear who will form the next government, but they have not yet taken office (see paragraphs 6.24 - 6.25).
...
Clear outcome
6.24 Where it is clear which party or parties will form the next government but Ministers have not yet been sworn in, the outgoing government should:
a. undertake no new policy initiatives; and
b. act on the advice of the incoming government on any matter of such constitutional, economic or other significance that it cannot be delayed until the new government formally takes office - even if the outgoing government disagrees with the course of action proposed.
6.25 Situations of this kind are likely to be relatively short-lived, as the Constitution Act 1986 enables a swift transition between administrations once the composition of the new government has been confirmed.

That is, the Prime Minister and her ministers are required to act on the advice of John Key if any matters of significance need to be addressed before his government is sworn in.

Course Outline

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.